Blind Justice

Thanks to Meredith Blake here at The Book Bench for her link to Lawrence Lessig’s piece in the current issue of The New Republic. Setting the stage for a discussion of the implications of Google’s proposed settlement with authors’ groups, Lessig sets out the problems faced by documentary filmmakers when they attempt to license film clips rather than doing what nonfiction authors do when citing published texts, namely, relying on the doctrine of fair use.

The resulting paradox is to leave the interpretation and analysis of historical visual documents to richer filmmakers or organizations. Surely that isn’t consistent with the principles of copyright law. But, as Lessig writes,

most documentarians—indeed, most filmmakers—did not care to work through the complexity and the uncertainty of a doctrine such as “fair use.”

I’m not aware of any such case; but I am aware of such worthy films as Thom Andersen’s “Los Angeles Plays Itself,” from 2004, being kept out of home-video release because of the large number of uncleared clips of which it’s comprised. I haven’t seen it in its entirety; I’ve seen snippets, and here’s one. Andersen’s incisive, wide-ranging discussion of the film clips seen there is an exemplary contribution to scholarship and, for that matter, the politics of culture, and I’d like to see the law say so and set it free, along with other such works of commentary on the audio-visual realm. To exempt that realm from wide-ranging and widely available critique is to give its wealthiest practitioners an unfair edge in the marketplace of ideas. It is, as far as I know, a case waiting to be made. (Thanks to Wikipedia, a link to a list of the films cited in “Los Angeles Plays Itself.”)

Sign up for the daily newsletter.Sign up for the daily newsletter: the best of The New Yorker every day.